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Bushner v. Larose

United States District Court, N.D. Ohio, Eastern Division

March 31, 2017

RAYMOND BUSHNER, Petitioner,
v.
CHRISTOPHER LAROSE, Respondent.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO. 14]

          Benita Y. Pearson United States District Judge

         Petitioner Raymond Bushner, an Ohio prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1), alleging one (1) ground for relief which challenges the constitutional sufficiency of his conviction for felonious assault with a firearm specification, domestic violence, having weapons while under a disability with a firearm specification, tampering with evidence with a firearm specification, and intimidation of a crime victim or witness in Summit County, Ohio Court of Common Pleas Case No. CR-2011-12-3301. The case was referred to Magistrate Judge James R. Knepp II for a Report and Recommendation. The magistrate judge subsequently issued a Report (ECF No. 12) recommending that the petition be dismissed. ECF No. 12 at PageID #: 317. Petitioner filed objections (ECF No. 14) to the magistrate judge's Report. Based upon the record before it, the Court overrules the objections, adopts the Report and Recommendation with modification, and dismisses the petition.

         I. Facts

         On direct appeal, Ohio's Ninth District Court of Appeals established the factual background of Petitioner's trial and convictions as follows:

{¶ 2} Bushner and seven other people were involved in an affray that took place at the apartment of Cory Prettyman. Bushner had been staying at the apartment for a brief period of time at Prettyman's invitation. On October 30, 2011, Bushner and Prettyman fought and several other individuals, one of whom brought a gun, were notified of the fight and came to the apartment. The witness accounts of what then happened varied, but the end result was that Bushner shot one of the unarmed individuals who came to the apartment and then fled.
{¶ 3} A grand jury indicted Bushner on counts of felonious assault, domestic violence, having weapons while under disability, tampering with evidence, and intimidation of a crime victim or witness. The felonious assault, having weapons while under disability, and tampering with evidence counts also included attendant firearm specifications. The matter proceeded to a jury trial, and the jury found Bushner guilty on all of the counts and specifications. The trial court then sentenced Bushner to 18 years in prison and ordered his sentence to run consecutively with a related case for a total of 18 years, 6 months in prison.

State v. Bushner, No. 26532, 2012 WL 6628876, at *1 (Ohio App. 9th Dist. Dec. 19, 2012) (ECF No. 4-1 at PageID #: 130-31). In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by the state courts are presumed correct. 28 U.S.C. § 2254(e)(1).

         The Court adopts the procedural background as outlined by the magistrate judge in his Report. ECF No. 12 at PageID #: 309-12.

         II. Standards of Review

         A. Standard of Review for Magistrate Judge's Report and Recommendation

         Where objections have been made to a magistrate judge's Report and Recommendation, the district court's standard of review is de novo. Fed. R. Civ. 72(b)(3). A district judge:

must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Id.

         Near verbatim regurgitation of the arguments made in earlier filings are not true objections. When an “objection” merely states disagreement with the magistrate judge's suggested resolution, it is not an objection for the purposes of this review. Cvijetinovic v. Eberlin, 617 F.Supp.2d 620, 632 (N.D. Ohio 2008), rev'd on other grounds, 617 F.3d 833 (6th Cir. 2010). Such “general objections” do not serve the purposes of Fed. R. Civ. P. 72(b). See Jones v. Moore, No. 3:04CV7584, 2006 WL 903199, at *7 (N.D. Ohio April 7, 2006). “A party who files objections to a magistrate [judge]'s report in order to preserve the right to appeal must be mindful of the purpose of such objections: to provide the district court ‘with the opportunity to consider the specific contentions of the parties and to correct any errors immediately.'” Id. (citing United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981)). The Supreme Court upheld this rule in Thomas v. Arn, 474 U.S. 140, 144 (1985), a habeas corpus case.

         Accordingly, this Court has conducted a de novo review of the portions of the magistrate judge's Report to which Petitioner has properly objected.

         B. Standard of Review for Habeas Petitions

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies to all federal habeas petitions filed after the Act's effective date. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007). The AEDPA was enacted “to reduce delays in the execution of state and federal criminal sentences, and ‘to further the principles of comity, finality, and federalism.'” Woodford v. Garceau, 538 U.S. 202, 206 (citing Williams v. Taylor, 529 U.S. 420, 436 (2000)). Consistent with this goal, when reviewing an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct. Wilkins v. Timmerman-Cooper, 512 F.3d 768, 774-76 (6th Cir. 2008). The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013).

         A federal court may not grant habeas relief on any claim that was adjudicated on the merits in any state court unless the adjudication of the claim either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); Wilkins, 512 F.3d at 774-76.

         It is now a well-established rule of law that the AEDPA established the standards that federal courts must apply when considering petitions for a writ of habeas corpus. See Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000) (“Federal habeas review of the state court's decision is governed by the standards established by the AEDPA.”). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court dictated the standard of review that a federal habeas court must apply under § 2254(d). Harris, 212 F.3d at 942. The Supreme Court held that:

A decision is “contrary to” clearly established federal law when “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.”[ ]
A state court's adjudication only results in an “unreasonable application” of clearly established federal law when “the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.”

Otte v. Houk, 654 F.3d 594, 599-600 (6th Cir. 2011) (quoting Williams, 529 U.S. At 412-13) (internal citations omitted).

         III. Law & Analysis

         Petitioner raises the following ground for relief:

TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY REFUSING TO GIVE PROPER SELF-DEFENSE INSTRUCTIONS UNDER OHIO'S CASTLE DOCTRINE, R.C. 2901.09(B), VIOLATING PETITIONER'S RIGHT TO DUE PROCESS AND A FAIR TRIAL.

ECF No. 1 at PageID #: 5.

         The magistrate judge recommends that the Court dismiss the petition on two grounds. First, the magistrate judge recommends that the petition should be dismissed because of procedural default. The magistrate judge found that: (1) Petitioner procedurally defaulted on his claim by not contemporaneously objecting to the state trial court's jury instruction (ECF No. 12 at PageID #: 315-16); (2) pursuant to, White v. Mitchell, 431 F.3d 517 (6th Cir. 2005), Petitioner “has not shown cause and prejudice that would excuse th[e] procedural default” (ECF No. 12 at PageID #: 316); and (3) pursuant to Coleman v. Thompson, 501 U.S. 722 (1991), Petitioner “has not demonstrated the failure to consider his claims will result in a fundamental miscarriage of justice” (ECF No. 12 at PageID #: 316). The magistrate judge also recommends that, even if Petitioner had not procedurally defaulted on his claim, the Petition should be dismissed because Petitioner's claim does not meet the threshold requirements of 28 U.S.C. § 2254(d). ECF No. 12 at PageID #: 316. Petitioner raises four (4) objections to the magistrate judge's recommendations.

         A. Objection Number One

         In his first objection, Petitioner avers that the magistrate judge “incorrectly ruled that Petitioner's counsel did not object to the jury instructions at the trial proceedings.” ECF No. 14 at PageID #: 320. Petitioner asserts that the magistrate judge “parroted the findings of the State Appellate Court [] which were erroneous with regard to this issue.” Id. at PageID #: 321. Petitioner also contends that the magistrate judge “ignored the facts from the record as presented by the Petitioner” when the magistrate judge “wrongly stated, ‘It is undisputed that [Petitioner] did not ...


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